Indigenizing the Drug Court

The Justice Programs Office is celebrating National Drug Court Month by sharing the personal perspectives of those who work in the treatment court field. Lauren van Schilfgaarde, Tribal Law Specialist at the Tribal Law and Policy Institute, continues our series with a look at Tribal Healing to Wellness Courts and their ability to heal both addictions and communities. 

headshot (1)The modern tribal court is not an organic indigenous system. It is, in part, a product of the Indian Reorganization Act (IRA) of 1934,[1] a federal statute that rejected prior federal Indian policies of assimilation and land loss and promoted the reestablishment of tribal governments.[2] Yet, the implementation of the Act meant tribal governmental structures needed to look and sound like Anglo institutions rather than traditional tribal ones. Furthered by the Indian Civil Rights Act of 1968,[3] the typical tribal court mirrors the American adversarial system, complete with a focus on incarceration and poor recidivism rates.

While the IRA sought to reverse harmful federal Indian law policies, it did little to slow the drastic cultural loss suffered by many tribes. Ceremonies, traditional medicines, and entire languages have been forced into oblivion and forgotten. But with the economic gains enjoyed under the IRA, spurred further by the era of self-determination, tribes are now enjoying a “spiritual revolution” through concentrated efforts to revitalize their cultural traditions and customs.[4] This trend is seen across tribal life and includes tribal justice systems. Tribes are creatively seeking to integrate traditional concepts of mediation, healing, consensus, and restoration into their jurisprudence.

Funny enough, as tribes have reawakened to their traditional ways of restorative justice, the American judicial system is just coming to know the restorative justice approach as a conceivable alternative. Punitive incarceration has enjoyed only muted success. But its failures and limitations are highlighted with the drug crisis in America, adding to a devastating mass incarceration trend. As numerous communities reel from various addictions, American Indians have the un-glorious benefit of centuries of experience, tasting the encompassing destruction of addiction since early Anglo contact and suffering some of the worst substance use afflictions compared to any other ethnic group.[5]

Enter drug courts. After decades of ever harsher criminal justice responses to ever worsening addiction crises, local justice systems finally started to experiment. Jail is substituted for intensive case management and supervision, coupled with a unique collaboration that transforms the adversarial system into a team that works for and with the individual. Participants are more likely to engage and stick with treatment, and they are less likely to re-offend.[6]

This sounds so familiar. Tribes were quick to recognize the appeal of drug courts and have immediately adopted them into their judiciary. Almost as quickly, the term “drug court” was abandoned, and “Healing to Wellness Court” was embraced to signify the goal, rather than the plight, and to note that the goal of wellness is never actually achieved but is instead a journey we forever travel.

The tribal court now plays an integral role in not just the participant’s healing, but also the tribe’s. Addiction affects the individual, their family, and their community. Tribes are using Wellness Court to help participants learn to cope with their addiction and to reintroduce the traditional ways of the community that had been long neglected or even lost to the participant. The Wellness Court is also a tool for community reintegration. Intriguingly, where once the tribal court reflected the most recent intrusion of foreign concepts, it is now starting to serve as the vehicle for healing from both addiction and cultural loss.

[1] Indian Reorganization Act of 1934, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461-79 (1983)).

[2]  COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 78 (Neil Jessup Newton ed., LexisNexis 2012).

[3] Indian Civil Rights Act of 1968 (ICRA), 82 Stat. 73 (codified at 25 U.S.C.§§ 1301-1304).

[4] Joseph Thomas Flies-Away and Carrie E. Garrow, Healing to Wellness Courts: Therapeutic Jurisprudence+, 2013 Mich St. L. Rev. 403 (2013).

[5] Karin A. Mack, Christopher M. Jones, and Michael F. Ballesteros, “Illicit Drug Use, Illicit Drug Use Disorders, and Drug Overdose Deaths in Metropolitan and Nonmetropolitan Areas – United States”, Centers for Disease Control and Prevention MMWR Surveill Summ 2017; 66 (No. 19).

[6] Douglas B. Marlowe, “Research Update on Adult Drug Courts,” National Association of Drug Court Professionals Need to Know (December 2010).

Guest post written by Lauren van Schilfgaarde, Tribal Law Specialist at the Tribal Law and Policy Institute

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